Karnataka High Court
Shri. Vishwanath S/O Ramkrishnasa ... vs Shri. Narayansa S/O. Ramkrishnasa ... on 29 July, 2025
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NC: 2025:KHC-D:9328
RFA No. 100341 of 2017
HC-KAR
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 29TH DAY OF JULY, 2025
BEFORE
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
REGULAR FIRST APPEAL NO. 100341 OF 2017 (POS)
BETWEEN:
1. SHRI. VISHWANATH S/O RAMKRISHNASA KHODAY
AGE: 60 YEARS, OCC: BUSINESS,
R/O. C/O. KHONDAY GARMENTS,
DAJIBANPETH, HUBBALLI-580028.
...APPELLANT
(BY SRI. PRAKASH K. JAWALKAR, ADV)
AND:
1. SHRI. NARAYANSA S/O. RAMKRISHNASA KHODAY
AGE: 63 YEARS, OCC: BUSINESS,
R/O. GANGAPURPETH, GADAG-582103.
MOHANKUMAR
B SHELAR 2. SHRI. MANOHARSA S/O. RAMKRISHNASA KHODE
AGE: 58 YEARS, OCC: BUSINESS,
Digitally signed by
MOHANKUMAR B R/O. GANGAPURPETH, GADAG-582103.
SHELAR
Date: 2025.08.01 ...RESPONDENTS
11:36:39 +0530
(BY SRIYUTHS. ARUN L. NEELOPANT, KAVITHA S. JADHAV
AND N.B. JODALLI, ADVS FOR R1
SRIYUTHS. VISHWANATH S. BICHAGATTI AND
PARASHURAM C. SAJJANAR, ADVS FOR R2)
THIS RFA IS FILED U/SEC. 96 READ WITH ORDER 41 RULE 1 OF
CPC., AGAINST THE JUDGMENT AND DECREE DATED 14.08.2017
PASSED IN O.S NO.151/2016 ON THE FILE OF THE III ADDL. SENIOR
CIVIL JUDGE, HUBBALLI, PARTLY DECREEING THE SUIT FILED FOR
POSSESSION AND MESNE PROFITS.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, THE
JUDGMENT WAS DELIVERED THEREIN AS UNDER :
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NC: 2025:KHC-D:9328
RFA No. 100341 of 2017
HC-KAR
CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI)
1. Learned counsel for the appellant filed a memo
seeking permission of this court to withdraw the appeal,
with a liberty to file a partition suit pertaining to the suit
properties of this appeal.
2. Perused the Judgment and decree passed by the
Trial Court.
3. The plaintiff filed a suit for possession in
O.S.No.151/2016 based on a registered sale deed, marked
as Ex.P5. However, the plaintiff has not sought a relief of
declaration of title. Despite this, the Trial Court in paragraph
No.39 of its Judgment, recorded a finding, which reads as
follows:
"So in view of my aforesaid discussion above
and considering oral and documentary evidence on
record, the plaintiff has proved his title over the suit
schedule property and their existence"
4. One Shankuntala Bai had filed a suit for partition
and separate possession in O.S.No.66/2005 on 13.06.2005,
NC: 2025:KHC-D:9328
HC-KAR
wherein the present plaintiff and the defendants have filed a
common written statement contending that the suit
scheduled properties (therein), including the subject matter
of this appeal, are purchased from the joint family funds and
they are the joint owners.
5. In view of the admission made by the plaintiff
and the defendants in O.S.No.66/2005, it was for the Trial
Court to record the finding regarding the title of the plaintiff
over the suit schedule properties. The finding recorded by
the Trial Court about the title of the plaintiff over the suit
schedule properties, was unwarranted.
6. Learned counsel for the respondent submits that
he has no objection for the withdrawal of the appeal by the
appellant.
7. Memo is taken on record.
8. The appeal is dismissed as withdrawn, with a
liberty to the appellant, to file a partition suit.
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HC-KAR
9. In case, if the defendants file a suit for partition
and separate possession, the Trial Court shall dispose of the
suit without being influenced by any observations made in
the impugned judgment insofar as the title of the plaintiff's
over the suit schedule properties, is concerned.
10. All the contentions of the parties that are kept
open.
Sd/-
(ASHOK S. KINAGI)
JUDGE
RHR/-
CT: BSB
